A different Iraq hangover for Obama

As the ISIL threat grows, the White House faces questions as to why they didn’t stay in Iraq. | AP Photo

Some of the other defense arguments aren’t likely to play well in Iraq. Bill Coffield, defense attorney for guard Evan Liberty, used part of his brief closing statement Thursday to argue that Iraqis seem culturally predisposed to lie in official proceedings.

“Why did so many Iraqi witnesses take the stand and say things that are obviously not true?….There were dozens of them,” Coffield told the jury, quoting a young Iraqi witness who seemed to say it wasn’t always wrong to lie to investigators. “Western culture is different than Middle Eastern culture…..I’m assuming it’s cultural.”

Text Size

-

+

reset

“These four young men were laid low and buried for seven years by people who have maligned them and demonized them—by people who don’t know the facts,” Coffield said of the defendants.

While the defendants were charged initially with numerous counts of voluntary manslaughter and attempted voluntary manslaughter, as well as weapons charges, procedural problems led to those charges being thrown out against one defendant, Nicholas Slatten.

Prosecutors filed a new indictment charging Slatten with first-degree murder. A judge rejected defense motions attacking the charge as vindictive prosecution, but the first-degree murder one is much harder to prove than manslaughter.

Asuncion argued Tuesday that Slatten was seeking “payback for 9/11” and was intent on killing as many Iraqis as he could. The prosecutor suggested that could amount to the kind of premeditation required to convict someone of first-degree murder, but it’s unclear whether jurors will view Slatten’s alleged shooting of the driver of one vehicle in the traffic circle on that 2007 day as akin to a deliberate plan to kill an American on a city street or in a home.

There has also been trouble with the evidence in the case and with putting on a trial over events that took place 6,000 miles away. In May, prosecutors advised the court that vehicles shot up in Al-Nisour square and preserved for years as evidence in the case had been moved from their U.S. Embassy-controlled storage site in Baghdad and damaged.

“The Court is still pondering the realm of reality in which the Department of State exists,” Judge Royce Lamberth wrote. “If the Department of State and the Diplomatic Security Service had tried deliberately to sabotage this prosecution, they could hardly have done a better job,” Lamberth added in another order, calling the misjudgments a “fiasco” and “incredible.”

Defense attorneys learned just recently that one Army investigator on the scene took photos of AK-47 casings found near a bus stop just outside the traffic circle. Prosecutors turned over the evidence only after the trial began, even though the FBI had the photos for years. The defense contends the evidence supports their claims that the incident in the square was an exchange of gunfire rather than entirely one-sided as the prosecution contends.

Another twist: the hail of bullets fired that day left it difficult, if not impossible, to be certain which of the dead Iraqis were shot by which of the American security men. Prosecutors insist that the men acted in concert so they can be found guilty under the theory of “aiding and abetting” a crime even if jurors can’t be sure who shot or killed a specific victim.

:They cannot prove that any one of the individual defendants shot anybody,” said David Schertler, defense lawyer for guard Justin Heard. “Aiding and abetting doesn’t apply to this case… There was no discussion. There was no communication.”

The prosecution’s case also contains a potentially fatal flaw of a more basic kind: it’s not entirely clear that U.S. law allows the former Blackwater guards to be charged for actions they took in Baghdad. The Justice Department press release announcing the indictment in the case back in 2008 boasted that it was the first prosecution of crimes abroad under an amendment Congress passed in 2004 allowing non-Defense Department contractors to be charged under the Military Extraterritorial Jurisdiction Act.

That amendment said contractors could be prosecuted in the U.S. for actions abroad if their work “relates to supporting the mission of the Department of Defense.” Prosecutors say coordination between Blackwater and military personnel clearly satisfies that standard, as does the fact that the private guards freed up soldiers to do other work.

However, Defense lawyers say that the Blackwater guards — hired by the State Department — were not really aiding the military when they provided security for U.S. diplomats. Jurors will have to decide if the guards work met the legal definition needed to invoke the U.S. courts.

Despite the questions about U.S. jurisdiction, the criminal prosecution was promised by the Bush administration back in 2007 in an effort to defuse the crisis caused by the attack and quiet calls to strip immunity from or even shut down all U.S. security contractors in Iraq. That could have crippled U.S. military operations and training missions in Iraq by forcing thousands of American soldiers to take up the roles contractors played in protecting diplomats and other dignitaries.

While the case came to be known as the Blackwater Five, there are only four men on trial at the moment. At one point, six contractors faced prosecution, but one of those guards — Jeremy Ridgeway — pled guilty to reduced charges at the outset of the case and agreed to testify against the others.

Last year, prosecutors dropped one defendant, Donald Ball, from the case without explanation leaving only four men charged: Slatten, Liberty, Heard and Paul Slough.

Defense lawyers have used their closings to paint Ridgeway as someone out to save his own skin by lying about his colleagues.

“They made a deal with the devil,” Schertler declared. “Jeremy Ridgeway by his own admission shot more than anyone else….If anybody was out of control, if anybody was excessive, it was Jeremy Ridgeway.”

In large part, the defendants are attempting a fog-of-war defense often used by military personnel facing courts martial. What’s less clear is whether jurors may have less sympathy for defendants some see as mercenaries or hired guns rather than uniformed U.S. troops.

Asuncion’s argument that the men faced no provocation whatsoever when they fired seems like a difficult sell based on the evidence jurors have heard. The government’s best hope of getting convictions in the case may well come from a second line of argument he put forward Tuesday: that whatever the threat may have been, the reaction from the men in the Blackwater convoy was grossly disproportionate.

The prosecutor insisted that even the threat of a car bomb or the possibility of incoming small-arms fire did not justify the kind of mayhem the guards unleashed in a busy traffic circle, cutting down more a dozen civilians in addition to the occupants of the car that some may have regarded as a threat but turned out not to have any explosives aboard.

“None of these victims stood a chance,” the prosecutor said, arguing that even serious threats did not justify such unrestrained and unlawful killing. “There is no special combat-zone exemption,” he insisted.